Robyn Smith v Chevelle Developments Pty Ltd t/as Snowden Parkes Real Estate Agents and Another [2005] NSWIRComm 109

Robyn Smith v Chevelle Developments Pty Ltd t/as Snowden Parkes Real Estate Agents and Another [2005] NSWIRComm 109

Ms Smith's right to bring proceedings under s106 of the Industrial Relations Act 1996 arose when the employment contract came into existence during her bankruptcy. That right was after-acquired property within s58(1)(b) of the Bankruptcy Act 1996 (Cth) and property divisible among creditors under s116(1), and it did not fall within the s116(2)(g) exemption because the proceedings concerned alleged unfairness of an employment contract and property or economic rights, not compensation for personal injury or a personal wrong. The right therefore vested in the trustee, Ms Smith had no right to commence the proceedings, and her later discharge from bankruptcy did not alter that conclusion.

Jurisdiction
Australia
Judgment Date
08 April 2005
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Judgment on Respondents' Notice of Motion Seeking Orders Setting Aside the Summons; Proceedings Dismissed
Outcome
Proceedings dismissed.
Legal Topics
['unfair Contract Under S106 of the Industrial Relations Act 1996' "undischarged Bankrupt's Standing to Commence Proceedings" 'vesting of After Acquired Property in Trustee in Bankruptcy' 'exemption for Damages or Compensation for Personal Injury or Wrong' "costs Payable by Applicant and Applicant's Solicitor"]
['industrial Relations' 'employment Law' 'bankruptcy' 'costs'] ['unfair Contract Under S106 of the Industrial Relations Act 1996' "undischarged Bankrupt's Standing to Commence Proceedings" 'vesting of After Acquired Property in Trustee in Bankruptcy' 'exemption for Damages or Compensation for Personal Injury or Wrong' "costs Payable by Applicant and Applicant's Solicitor"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Judgment on Respondents' Notice of Motion Seeking Orders Setting Aside the Summons; Proceedings Dismissed

Legal Issues

  1. 1 ['Whether Ms Smith, as an undischarged bankrupt when the summons was filed, had the right to commence proceedings under s106 of the Industrial Relations Act 1996.' 'Whether the right to bring the s106 proceedings was after-acquired property vesting in the trustee under the Bankruptcy Act 1996 (Cth).' 'Whether the s106 claim fell within the exemption for a right to recover damages or compensation for personal injury or wrong done to the bankrupt under s116(2)(g).' 'Whether costs should be borne by Ms Smith or by her solicitor in relation to costs caused by failure to respond to bankruptcy enquiries.']

Ratio Decidendi

Ms Smith's right to bring proceedings under s106 of the Industrial Relations Act 1996 arose when the employment contract came into existence during her bankruptcy. That right was after-acquired property within s58(1)(b) of the Bankruptcy Act 1996 (Cth) and property divisible among creditors under s116(1), and it did not fall within the s116(2)(g) exemption because the proceedings concerned alleged unfairness of an employment contract and property or economic rights, not compensation for personal injury or a personal wrong. The right therefore vested in the trustee, Ms Smith had no right to commence the proceedings, and her later discharge from bankruptcy did not alter that conclusion.

Court Disposition

Proceedings dismissed.

Orders

  • ['The proceedings are dismissed.' "The applicant is to bear the respondents' costs, as agreed or assessed, other than in relation to the costs connected with the correspondence between 23 February 2005 and 11 March 2005 and the mention on 8 March 2005." 'The costs connected with the correspondence between 23...